Australian Competition & Consumer Commission v Universal Music Australia Pty Limited (No 2) [2002] FCA 192

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Universal Music Australia Pty Limited (No 2) [2002] FCA 192 TRADE PRACTICES – pecuniary penalty - principles to be applied in assessing the appropriate pecuniary penalty for contravention of sections 46 and 47 of Part IV of the Trade Practices Act 1974 (Cth) – relevance of amendment increasing maximum penalties discussed. TRADE PRACTICES – Injunctive relief – whether injunctive relief should be granted where respondents unlikely to reoffend.

COSTS – offer to settle on the basis that Australian Competition & Consumer Commission discontinue and no order be made as to costs – whether Calderbank offer – whether a genuine offer of compromise where no consideration of real value – no order for indemnity costs made. Trade Practices Act 1974 (Cth) ss 80 (4), 80(5)

Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 applied Australian Competition and Consumer Commission v Roche Vitamins Australia Pty Ltd (2001) ATPR 41-809 distinguished Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd [2001] FCA 1716 cited ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 cited Multicon Engineering Pty Ltd v Federal Airports Corporation (1996) 138 ALR 425 discussed John S Hayes v Kimberly-Clark (1994) 52 FCR 201 discussed Calderbank v Calderbank [1975] 3 All ER 333 distinguished Smallacombe v Lockyer Investment Co (1993) 42 FCR 97 followed McKerlie v State of New South Wales (No2) [2000] NSWSC 1159 cited

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 925 OF 1999

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

APPLICANT

AND: UNIVERSAL MUSIC AUSTRALIA PTY LIMITED (formerly known as PolyGram Pty Limited) (ACN 000 158 592)